Citation Nr: 1303034
Decision Date: 01/30/13 Archive Date: 02/05/13
DOCKET NO. 09-40 908 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for a heart disability.
2. Entitlement to service connection for a gastrointestinal disability.
3. Entitlement to service connection for a right ankle disability.
4. Entitlement to service connection for hypertension.
5. Entitlement to service connection for a bladder disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The Veteran served on active duty from January 1970 to January 1972.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Nashville, Tennessee.
In October 2012, the Veteran was afforded a videoconference hearing before Michael A. Herman, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002).
The issues of entitlement to service connection for hypertension, and a bladder disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.
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FINDINGS OF FACT
1. The evidence of record does not demonstrate that the Veteran has a heart disability, to include ischemic heart disease, or a gastrointestinal disability.
2. The Veteran does not have a right ankle disability that was caused by his service.
CONCLUSION OF LAW
A heart disability, a gastrointestinal disability, and a right ankle disability, were not caused by the Veteran's service; a heart disability, and a gastrointestinal disability, were not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
The Veteran asserts that he is entitled to service connection for a heart disability, a gastrointestinal disability, and a right ankle disability. With regard to the claims for a right ankle disability, and a heart disability, he has indicated that he has had symptoms of these disorders since his service. See transcript of Veteran's hearing, held in October 2012. With regard to the claims for a heart disability, and a gastrointestinal disability, these disorders are also claimed as secondary to service-connected disability, or, in the alternative, as due to exposure to Agent Orange during service in Vietnam. See Veteran's appeal (VA Form 9), received in October 2009.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a cardiovascular-renal disease, and arthritis, when they are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).
The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service.
Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e).
Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Recently, changes have been made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange. See 75 Fed. Reg. 14391 (March 25, 2010); 38 C.F.R. § 3.309(e). These changes add ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease, as presumptive disorders.
Under 38 C.F.R. § 3.309(e), ischemic heart disease is stated to include, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm), and coronary bypass surgery. See 75 Fed. Reg. 14391 (March 25, 2010).
Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b).
The Veteran has not asserted that any of the claimed disabilities were incurred during combat, nor is participation in combat shown by service records. 38 U.S.C.A. § 1154(b) (West 2002); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256 - 6258 (2000). Therefore, participation in combat is not established and the Veteran is not entitled to the presumptions at 38 U.S.C.A. § 1154(b).
As the Veteran's personnel file (DA Form 20) indicates that he served in Vietnam in 1971, duty in the Republic of Vietnam is shown for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309.
The Veteran's service treatment reports show that in June 1971, he was treated for complaints of upper left chest pain/pain on taking a deep breath, with no specific complaints at present. On examination, chest sounds were clear. The reports note that he was provided with Robitussen, and that he was to return for treatment if need be. There was no diagnosis. Another June 1971 report notes that a chest X-ray was essentially negative. The Veteran's separation examination report, dated in January 1972, shows that his heart, abdomen and viscera, and lower extremities were clinically evaluated as normal.
The post-service medical evidence consists of VA and non-VA reports, dated between 2002 and 2012. This evidence includes reports from K.C., M.D., dated in August 2002, which note hyperlipidemia. An April 2005 report notes that the Veteran worked driving an 18-wheeler (truck). A December 2006 report notes PUD (peptic ulcer disease). Another report, dated in December 2006, notes that the Veteran had a calcium score of 51, and that he was in the range for risk of coronary artery disease, with mild or minimal coronary artery narrowing likely, and a "definite" implication of at least moderate atherosclerotic plaque. The records include no complaints, treatment, or diagnosis of any gastrointestinal disorder or a bowel-related problem. There is only a reference to a past history of peptic ulcer disease.
A VA diabetes mellitus examination report, dated in April 2008, shows that the Veteran was noted to have reported a history of chest pain with some atypical features, and that further cardiac workup was deferred. The diagnoses included diabetes mellitus, type 2. An associated ETT (exercise tolerance test) notes a METS (metabolic equivalents) score of 5, that the maximal ergometer stress test was clinically and electrocardiographically negative for exercise-induced myocardial ischemia, that there was poor exercise tolerance, and that the test had been stopped due to fatigue and leg discomfort.
A VA joints examination report, dated in September 2008, shows that the Veteran reported a history of employment as a truck driver, and that he had broken his ankle during service, but he was told this "after the fact," and that he had done fairly well, but his pain had been getting worse over the last several years. He reported that his walking was not limited by his ankle. An X-ray of the right ankle was noted to show an old lateral malleolus ankle fracture. The relevant assessment was old lateral malleolus ankle fracture with mild instability. The examiner stated:
As far as his right ankle by report it does appear that his current condition is more likely than not a result of his fracturing his ankle while in the service; however, my opinion is based on patient's report as I do not have any documented evidence at this point of this injury occurring.
A VA heart examination report, dated in September 2008, notes a history of hypertension since 1996, and hypercholesterolemia, both for which he took medication. The Veteran complained of a six-month history of chest pain which occurred once or twice every two weeks. The report notes that he was a truck driver who had been disabled after a fall in which he landed on his lower back in 2005. The Veteran stated that he had been unable to complete his ETT due to leg and back pain, with no chest pain or electrocardiogram (EKG) changes at that time. An electrocardiogram (EKG) was noted to be normal. There was a "strongly positive" family history for premature coronary artery disease in his father and paternal grandfather. He was noted to be smoking ten cigarettes per day, down from his previous 11/2 PPD (packs per day). The relevant assessments were atypical chest pain, and "coronary artery sclerosis - subclinical." The examiner stated the following: the Veteran had a history of chest pain with features not typical for a cardiac ischemia related to occlusive coronary artery disease. There were no findings on examination or non-invasive assessment to indicate the presence of occlusive coronary disease or other cardiac disease at present. The Veteran's coronary risk factors of type 2 diabetes mellitus, hypercholesterolemia, hypertension, and cigarette smoking are either well-controlled or coming under control. His overall cardiac prognosis is good at this time. There are findings indicating the presence of early subclinical coronary arterial sclerosis in the form of mild coronary calcification. In this regard, the Veteran's service-connected type 2 diabetes mellitus may be considered a significant risk factor for the development of coronary arterial sclerosis. This is, however, asymptomatic at present.
A VA general medical examination report, dated in September 2008, notes a history of diabetes mellitus since 2007. The Veteran reported a right ankle injury shortly after beginning boot camp in 1970, with current pain. He also reported having chest pain since 2007, once every one to two weeks. He reported a post-service employment history of loading trucks, roofing, forklift work, and working for a bottling company, and supervisor at a brewer's company. His last job was as a truck driver in 2005, at which time he quit after injuring his back. He was noted to have a 60-pack/year smoking history, currently down to a pack per day. The relevant impressions were adult-onset diabetes mellitus, and hyperlipidemia.
A VA report, titled "Disability Benefits Questionnaire Ischemic Heart Disease," (hereinafter "DBQ") dated in February 2011, by Dr. S.B., a physician, shows that she indicated the following: the Veteran does not have ischemic heart disease. Although the Veteran's coronary calcification score is consistent with mild coronary arterial sclerosis, this is subclinical. There is no evidence of occlusive CAD (coronary artery disease). His ETT was negative and there is no evidence of clinically significant ischemia and no revascularization was done. There is no history of percutaneous coronary intervention, myocardial infarction, coronary bypass surgery, heart transplant, or cardiac implantation. There is no evidence of cardiac hypertrophy or dilation. There is no evidence of occlusive CAD based on negative ETT. The Veteran's coronary arterial sclerosis is considered subclinical, meaning it does not cause clinically significant ischemia. The Veteran's METS score of 5 (in 2008) does not correlate with his cardiac condition as the test was considered negative and was limited by leg discomfort. An echocardiogram was recommended, but the Veteran declined. The Veteran reported chest pain with atypical features which are not suggestive of cardiac ischemia. The Veteran cannot perform an ETT currently because of back pain. He is on ASA (aspirin) because of his coronary arteriosclerosis and as recommended for most diabetics. He also takes Lisinopril for hypertension and Simvastatin for hyperlipidemia.
In an addendum, dated in May 2011, Dr. S.B. stated that the Veteran's claims file had been reviewed. Dr. S.B. summarized the relevant medical history, to include the Veteran's 2008 VA examination report, which she indicated showed no findings on examination, or non-invasive assessment, to indicate the presence of occlusive coronary disease or other cardiac disease at present, and that coronary arterial sclerosis is asymptomatic at present. Dr. S.B. concluded:
[The] Veteran had a calcium scoring report which was noted and, based on that, he was diagnosed as having coronary arterial sclerosis. Previously this was described as subclinical and asymptomatic. He had a negative ETT and his chest pain were [sic] noted to be not typical for cardiac ischemia. Therefore, it is less likely that he has clinically significant ischemia. He has not required coronary revascularization. Based on notation in the DBQ that ischemic heart disease encompasses any atherosclerotic heart disease resulting in clinically significant ischemia or requiring coronary revascularization, per these criteria, the Veteran's condition does not meet the VA definition for ischemic heart disease.
Regarding nonocclusive CAD, this would be a finding determined by cardiac catheterization, which is an invasive procedure with its own risks. The Veteran has not undergone this procedure in the past especially in view of negative ETT and of note, he had declined referral for a non-invasive test, echocardiogram.
VA progress notes, dated between 2008 and 2010, show the following: in March 2008, the Veteran was noted to have a history of smoking three PPD of cigarettes for 43 years, with assessments of essential hypertension, diabetes mellitus, tobacco abuse, and hyperlipidemia. See also October 2008 and June 2009 reports (same). A June 2008 chest X-ray report contains an impression of "no acute findings." Some reports contain a "problem list" noting a history of a fractured right ankle. Again, there notes are absent any findings of complaints, treatment, or diagnosis of a chronic disorder related to the gastrointestinal system.
A decision of the Social Security Administration (SSA), dated in October 2011, shows that the SSA determined that the Veteran was disabled as of June 2005, due to severe impairments of a disorder of the spine, and diabetes mellitus.
A. Gastrointestinal Disability
As noted, the Veteran's service treatment records are negative for any complaints, diagnoses, or treatments for any relevant symptoms. The claimed disability is not noted in the Veteran's separation examination report. A chronic condition is therefore not shown during service. See 38 C.F.R. § 3.303(b). Moreover, while a diagnosis of peptic ulcer disease (PUD) was recorded in 2006, such is more than 30 years post-service, which would preclude any presumption of service connection.
The 2006 diagnosis of PUD was also prior to the date of the Veteran's filing of his claim. Such is significant as there is no subsequently-dated medical evidence to show that the Veteran currently has peptic ulcer disease, or any other gastrointestinal disorder. See generally McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). There is simply no evidence documenting complaints, treatment, or diagnosis of any gastrointestinal disorder to during the appeal period.
The Veteran's complaints of experiencing bowel incontinence have been considered, which were only raised at his personal hearing. He competent to report such a symptom. However, as indicated, the record is absent any related findings. He has been examined numerous times and is an active patient in the VA healthcare system and frequently seeks care for a myriad of health problems, to include urinary problems. If he truly suffers from bowel incontinence or any other type of gastrointestinal disorder, the Board believes he would have at least reported such. His current assertion of having bowel incontinence is not deemed credible. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist).
The Board therefore finds that the preponderance of the evidence shows that the Veteran does not have a gastrointestinal disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). There is also no competent evidence to show that the claimed disability is related to the Veteran's service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied.
B. Heart Disability
The Veteran's service treatment records are negative for any complaints, diagnoses, or treatments for any relevant symptoms, with the exception of treatment for chest pain in June 1971. However, with regard to chest pains, VA generally does not grant service connection for symptoms which have not been associated with trauma or a disease process. See e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The June 1971 treatment did not result in a diagnosis, there is no record of subsequent treatment, and a heart disability was not noted in the Veteran's separation examination report. A chronic condition is not shown during service. See 38 C.F.R. § 3.303(b).
Notwithstanding the fact that chest pain in and of itself is not a diagnosed disability, and that a heart disability has not been presently diagnosed (see below), the Board finds that the Veteran is not a credible historian with respect to his assertion of have experiencing ongoing symptoms (chest pain) since his service. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The September 2008 VA heart examination report shows that the Veteran reported a six-month history of chest pain. A similar history was given during a September 2008 VA general medical examination report wherein he reported a history of chest pain since 2007. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Further, and while not necessarily outcome determinative, the Veteran did not file his claim until February 2008. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection).
More importantly, the Board finds that the preponderance of the evidence shows that the Veteran does not have a diagnosed disability of the heart. Gilpin. Briefly stated, the 2008 VA examination report, the February 2011 DBQ, and the May 2011 supplemental opinion, all weigh against the claim. They show that although the Veteran's calcium scoring report indicates the possibility of coronary arterial sclerosis, this was described as subclinical and asymptomatic. The May 2011 opinion clearly stated that the current clinical findings did not support a diagnosis of ischemic heart disease or any other heart disorder. The May 2011 opinion is considered highly probative evidence against the claim, as it is shown to have been based on a review of the Veteran's claims file, as she concluded that the Veteran's condition does not meet the VA definition for ischemic heart disease, and as her conclusion is accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
There is no competent, countervailing opinion of record, and there is no competent evidence of record to show the presence of any other type of heart disease. Indeed, with regard to the Veteran's own contention that he has a heart disability, he, as a layperson, is not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). The diagnosis of a heart disability, such as ischemic heart disease, requires a level of medical expertise that the Veteran does not possess. The Board further notes that the Veteran has declined to take an echocardiogram. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005) (the claimant is obligated to cooperate in the development of evidence, and failure to do so puts him at risk of an adverse adjudication based on an incomplete and underdeveloped record.).
Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim for service connection for a heart disability must be denied.
C. Right Ankle
As an initial matter, the Veteran asserts that he broke his right ankle in March 1970, immediately prior to graduation from boot camp. He says he was told that he could go to sick bay immediately, or finish graduation and go to sick bay when he got to Camp Lejeune for further training. He decided to wait, and upon arrival at Camp Lejeune, on a Friday, he was told that he could receive treatment the following Monday. However, by Monday his swelling had gone down and it was decided not to send him to sick bay. He received treatment upon his return from Vietnam, about two years later, at which time his ankle was X-rayed and he was told his ankle was broken, and that it had not been sprained.
While he is competent to report injuring his ankle in service, the Board does not find the Veteran's history of fracturing his ankle in service to be credible. First, as noted, his service treatment reports do not show any treatment for right ankle symptoms, to include an X-ray, at any point in time, to include his remaining period of service (i.e., about one year and ten months after he allegedly broke his right ankle in March 1970). In addition, the Veteran's service personnel reports indicate that following boot camp he received additional training with an ITR (infantry training regiment), which presumably includes strenuous physical activities such a marching, followed by duties that included service in Vietnam. A right ankle disorder is also not shown upon separation from service. The Veteran has reported a post-service employment history of loading trucks, roofing, forklift work, and working for a bottling company, and supervisor at a brewer's company. These positions appear to have required significant physical labor and use of his ankle, to include as standing and walking which indirectly place stress upon the ankle. Finally, a right ankle disorder is not shown until 2008, and there is no post-service evidence of treatment for a right ankle disorder prior to this time. This is about 37 years after separation from service. The totality of this evidence supports the Board's conclusion that the Veteran is not credible with respect to his claim of having fractured his ankle during active service.
The Board has considered the opinion in the VA examination report, which established a positive nexus between the Veteran's current ankle problems and his active service. However, the examiner made clear that his opinion was by history only, and that he did "not have any documented evidence at this point of this injury occurring." In this case, the Board has determined that he is not a credible historian, and that he did not suffer a right ankle fracture in service. Therefore, the opinion is not shown to have been based on an accurate history, and it is afforded no probative value. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied.
D. Agent Orange; 38 C.F.R. § 3.310
With regard to the possibility of service connection based on exposure to Agent Orange, although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange, the Board has determined that a ischemic heart disease, and a gastrointestinal disability, are not shown. Alternatively stated, there is no competent evidence of record which associates a currently demonstrated heart or gastrointestinal disorder with exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Finally, with regard to the claim that the Veteran has the claimed conditions that were caused or aggravated by service-connected disability, service connection is currently in effect for: diabetes mellitus type 2 with cataracts, nephropathy, posttraumatic stress disorder, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction.
The Board has determined that a ischemic heart disease, and a gastrointestinal disability, are not shown, and there is no competent evidence in support of these aspects of the claims. Service connection for any of the claimed disabilities on a secondary basis is therefore not warranted. See 38 C.F.R. § 3.310.
Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied.
E. Secondary Service Connection
Consideration has been given to the Veteran's assertion that his gastrointestinal symptomatology was caused or aggravated by medications used to treat his diabetes mellitus. However, as a diagnosis of a present gastrointestinal disability is not of record, the discussion of secondary service connection for that disability is without merit. Service connection on that basis is simply not possible at this juncture. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994).
Similarly, while not necessarily posited by the Veteran, any claim of secondary service connection for a heart disorder would fail with the present absence of any diagnosed disability of the heart.
II. VCAA
The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2008 (two notices), and August 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).
The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. With regard to the claims for a heart condition, and a right ankle disability, the Veteran has been afforded VA examinations, and an etiological opinion has been obtained for the right ankle (however, as previously stated the right ankle opinion is afforded no probative value). The Board has determined that a heart disability is not currently shown). VA has also obtained a disability decision from the SSA. To the extent that VA may not have obtained the SSA's associated medical reports, the Veteran has not asserted that the SSA's records are relevant to his claims, and the SSA's decision clearly indicates it awarded disability benefits based on his lumbar spine disorder, and diabetes mellitus. Therefore, no additional development is warranted. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that SSA records are not relevant when a SSA decision is on a completely unrelated medical condition and the Veteran makes no allegations that the records may otherwise be relevant to the claim for which the Veteran seeks VA benefits).
With regard to the claims for a gastrointestinal disability, the Veteran has not been afforded an examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.
The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against this claim. Similarly, the post-service medical evidence does not show any relevant complaints, treatment, or findings other than in 2006 (prior to the filing of his claim), and the Board has determined that a gastrointestinal disability is not currently shown. There is no medical evidence linking the claimed condition to the Veteran's service, or to a service-connected disability. The Veteran's assertions have been found not to be credible. Therefore, the McLendon criteria are not satisfied. Accordingly, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002).
Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
ORDER
Service connection for a heart disability, a gastrointestinal disability, and a right ankle disability, is denied.
REMAND
The Veteran asserts that he has hypertension, and a bladder disability, that were caused or aggravated by service-connected disability, specifically, his service-connected diabetes mellitus. Hypertension has been diagnosed. There is also evidence that the Veteran experiences genitourinary system problems that include urinary incontinence.
VA's statutory duty to assist a veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, the Veteran has not yet been afforded examinations, and etiological opinions have not been obtained. On remand, he should be scheduled for examinations of his bladder, and hypertension.
The Veteran is advised that it is his responsibility to report for any examination(s) and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim(s). 38 C.F.R. § 3.655 (2012).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a hypertension examination. Make the Veteran's claims file available for review by the examiner, who should be asked to indicate in his/her medical opinion that such a review was conducted.
The examiner should be provided with a list of the Veteran's service-connected disabilities.
a) The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any hypertension found was caused by the Veteran's service.
b) The examiner should provide a nexus opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any of the Veteran's service-connected disabilities, to include diabetes mellitus, aggravated (i.e., permanently worsened beyond its natural level of progression) his hypertension, with complete rationale for the opinion provided.
If such aggravation is found to exist, the examiner should provide an assessment, if possible, of the baseline level of impairment of the Veteran's hypertension prior to aggravation, and then provide a quantification, if possible, of the level of additional impairment above and beyond this baseline level imposed by the aforementioned service-connected diabetes mellitus. If it is not possible to provide such an assessment, the examiner should so state and explain why this is so.
"Aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability.
The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
2. Schedule the Veteran for an examination of his bladder. Make the Veteran's claims file available for review by the examiner, who should be asked to indicate in his/her medical opinion that such a review was conducted.
The examiner should be provided with a list of the Veteran's service-connected disabilities.
a) The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any bladder disorder found was caused by the Veteran's service.
b) The examiner should provide a nexus opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any of the Veteran's service-connected disabilities, to include diabetes mellitus aggravated (i.e., permanently worsened beyond its natural level of progression) a bladder disorder, with complete rationale for the opinion provided. The examiner should specifically address the argument that the onset of the Veteran's genitourinary system problems occurred after he started taking medications to treat his diabetes mellitus.
If such aggravation is found to exist, the examiner should provide an assessment, if possible, of the baseline level of impairment of the Veteran's bladder disorder prior to aggravation, and then provide a quantification, if possible, of the level of additional impairment above and beyond this baseline level imposed by his service-connected disabilities. If it is not possible to provide such an assessment, the examiner should so state and explain why this is so.
"Aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability.
The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
3. Readjudicate the issues on appeal. If either of the determinations remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim(s) for benefits, to include a summary of the evidence, and applicable law and regulations considered. The appellant and his representative should be given an opportunity to respond to the SSOC.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs